UDC opposes PA DEP policy proposal

The Upper Delaware Council, Inc. (UDC) unanimously approved a letter to the Pennsylvania Department of Environmental Protection (PA DEP) on May 2 expressing its opposition to the Sewage Facilities Planning Module Review for On-lot Sewage Systems Proposed in High Quality and Exceptional Value Watersheds.

The action was taken to support the positions of the Wayne and Pike County Commissioners, as well as the UDC member townships of Damascus, Berlin, Lackawaxen, Shohola, and Westfall.

Approximately 95% of Wayne and Pike Counties are in a High Quality (HQ) or Exceptional Value (EV) watershed, with significant amounts comprised of tributaries to the Upper Delaware Scenic and Recreational River.

The letter, signed by UDC Chairperson Jeffrey R. Dexter (Damascus Township representative), points out that water quality on the Upper Delaware River is uniformly good to excellent with positive trends continuing, according to the monitoring data routinely conducted by the U.S. Geological Survey, Delaware River Basin Commission, and the National Park Service.

While the PA DEP’s proposed policy aims to address Nitrate pollution, the UDC argues that the data proves this has not been an issue in Wayne and Pike Counties and that "current measures to protect the water quality in the river basin are successful." While the federal drinking level standard for nitrate-N is 10 mg/L, the new policy proposes what appears to be an arbitrary 45 mg/L standard.

"There is no documented science that correlates nitrate-N with a 45 mg/L standard," the letter states.

Furthermore, there are numerous contradictions contained within the language of the policy itself stating that nitrate in Pennsylvania groundwater is trending downward overall and that septic systems are generally not capable of affecting surface waters to the degree where the 10 mg/L may be threatened. These facts suggest there is no justification to implement the policy.

The UDC writes, “Creating a policy that represents HQ and EV streams throughout Pennsylvania does not address differences in soil and geologic conditions which vary greatly throughout the Commonwealth and have significant impacts on nitrate levels in ground and surface waters.”

The letter continues, "There is a fine line between protection and over-regulation. High quality water is the basis for many of the healthy, viable, rural communities in Wayne and Pike Counties. The Upper Delaware Council is committed to protecting the water quality in this region, and scientific evidence verifies that current land use practices in Pennsylvania are successfully accomplishing that task… We see no benefit to pre-empting local zoning and land use regulations given the good to excellent quality of the waters in the Upper Delaware watershed."

It is noted that the proposed policy would actually threaten the region’s economic vitality through its application of an arbitrary point system and its best management practices that could require cost-prohibitive new development models to implement.

"Furthermore, the proposed policy was derived from an Environmental Hearing Board Decision. Is the DEP not concerned that the required signing of a Declaration of Environmental Covenant that binds the land in perpetuity to the designated size and use could potentially be viewed as inverse condemnation by the court system?" the UDC asks.

The letter concludes by urging the PA DEP to address the valid concerns of the citizens in this affected region by discarding the draft policy.

A complete copy of the UDC’s May 2, 2013 letter is available on-line at www.upperdelawarecouncil.org[2] or please call (845) 252-3022 to request a hard copy.

DEP Response:

What we have proposed is not a guidance or a policy or a regulation. It is a technical guidance that solely exists in draft form. It is also a guidance that would not apply to an existing system or any project that has already secured sewage planning approval.

We developed it because a state environmental court ruled that the modeling we previously relied on when approving sewage planning for onlot systems near exceptional value or high quality watersheds was not protective of water supplies. The issue is not whether onlot systmes impact water supplies or waterways but how developers and DEP can prove that they don’t. That is the difficult legal issue the court has now presented DEP and the developers and as a result right now every sewage planning approval is vulnerable to a legal challenge. Absent this guidance, there is tremendous uncertainty from the regulated community.

The court case, Pine Creek Watershed Association v. DEP, was a challenge to an approved sewage plans for development near HQ watersheds. We have proposed a best management practice based approach in this guidance that developers can pick a number of tools, such as riparian buffers, the number of systems per acre or denitrification – or even present us with other methods – to show that the waters would be protected. The guidance does not require or prohibit anything – guidance by definition cannot do that.

If someone does not want to approach DEP for sewage planning approval using the guidance that we have proposed, they can certainly do that. They will just need to use an alternative approach that demonstrates water quality is protected. For example, the developer could conduct a technical analysis that shows water quality won’t be impacted. Such an analysis is costly, and the result of the analysis could show that water quality isn’t protected – necessitating the sort of best management practices we outlined in the draft.

We extended the public comment period on this because we want to hear other approaches on how to provide certainty to the regulated community. We want the economy to continue to grow and we want the environment to be protected. We are confident that there is a solution out there that DEP, the developers, the local governments and the state legislature can agree on.